Why do lawmakers question law in 9/11 trial?

By Jamie Rowen, San Francisco Chronicle

I just returned from Sarajevo where there were daily updates on the trial of Radovan Karadzic at the International Criminal Tribunal for the Former Yugoslavia in The Hague. Amid efforts to consolidate the fragile state, constantly undermined by nationalistic leaders in the country, opening statements reminded the Bosniak (Muslim) population, in gruesome detail, about the plot hatched by Bosnian Serb leaders to exterminate all Muslims. Through protests against legal representation (a tactic also used by Slobodan Milosevic), Karadzic successfully delayed his trial until March and gained even more support from nationalist Serbs.

Thus, I cannot help but note the irony of returning to the United States to read about the outrage of certain lawmakers over the possibility of trying the masterminds of the 9/11 attacks because these are “not crimes, they are acts of war,” or that the leaders may be able to “publicize their jihadist views,” or that the accused may be “let off on a legal technicality.” It is as though these lawmakers have been hibernating for the last half of the 20th century.

For 60 years, since the Nuremberg and Tokyo trials helped define war crimes and crimes against humanity, an international consensus has emerged regarding the importance of using judicial processes to redress mass atrocity. For much of the world, this is a sign of progress whereby the law of the state usurps individual desires for vengeance. For democratic states, rule of law is definitive and courts are the venue where individuals present their interpretations of events and a neutral third party makes judgment.

Something odd has happened in the United States. Not only did government lawyers create the legal fiction of enemy combatant and claim that torture – widely held to be a jus cogens crime (meaning there is no excuse) – is justifiable, now certain lawmakers are questioning the validity of a court of law to redress mass human rights violations. These lawmakers are undermining decades of jurisprudence that defines war crimes and provides the legal foundations for international criminal justice.

Once again, the United States is harming the crucial international effort to promote international criminal justice, human rights and the rule of law. While many on the right questioned the International Criminal Court, they did not question the validity of international criminal justice. Rather, they did not want the court to be used for political gain against the United States. These same lawmakers, or lawmakers with a similar ideology, now suggest that our court system is not a valid venue and the accused should not have the legal protections the lawmakers would want.

As we promote democracy abroad, what does this say to the rest of the world about our commitment to rule of law? Are Americans unable to hear what jihadists believe? Are we more fragile than the Bosniaks who survived an ethnic cleansing campaign? Do we really believe that the speeches in the court will give more fuel to the jihadists than knowledge that their leaders are not given a fair trial? Would we accept a dual system of justice for American POWs imprisoned abroad?

The trials in The Hague have led to considerable strife in the Balkans; Serbs feel attacked and Muslims feel slighted. As a democratic nation, this is a time to model, improve and promote criminal justice, not undermine it. Legitimate courts of law are the defining feature of our democracy and the goals we promote abroad. If our lawmakers do not trust the courts, how can we trust and support them – either our lawmakers or our courts?

Jamie Rowen is a doctoral candidate in the Jurisprudence and Social Policy Program at Berkeley Law School. She has worked in the Balkans, South Africa, Morocco and Vietnam.